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© Associated Train Crew Union. Web editor and designer David Nixon BA (Hons)
It’s all well and good applying for flexible working but what happens when an employer says no, and what remedies are there? Simply put, those remedies are very limited and only coinciding to the failure of the employer not following the procedure. The problem with this is that the employers focused mainly on the procedure rather than genuinely looking at the request or that the conclusion is a reasonable one.
Flexible working, nothing much changes
The right to flexible working was part of Labour government’s family friendly policy which assisted families in creating a balance between home and working life and was included into the ‘Employment Rights Act 1996. Part 8A Flexible working’.
The idea of flexible working was that an employee who is taking care of a child or dependent adult would put in a request to better balance their work and home. This was extended on several occasions to include older children and eventually dependent adults. Prior to the changes on 30th June 2014 the law covered predominately everyone except able bodied 17 year olds and above.
So what has The Flexible Working Regulations 2014 given us?
The first thing we need to note is that the legislation retains the 26 week qualifying period so that ‘any employee’ who has 26 weeks employment will have the right to request flexible working.
Second is the request by an employee for flexible working for any reason. Up to the 30th June that request had to be for the purpose of providing care for either a child or a dependent adult, from the 30th June that need is now removed. The new legislation does not care what the reason is for; in fact, you can make a request about practically anything. It is also considered that there is nothing in the legislation to suggest that the employer needs to take note of the purpose of the request. However, commonsense prevailing, it is practical to inform the employer the reason for the request, particularly if it concerns the taking care of dependents.
Third, the procedure of the request has been abolished and replaced with ‘a duty to handle requests in a reasonable manner’. So out goes the procedure which tended to follow the statutory route of requiring a meeting to take place with time scales and the right to appeal, which is fair to say was akin to a formal meeting. In the new legislation there is no specific procedure that needs to be followed, rather the new legislation states that ‘the employer deals with the application in a reasonable manner’ and ‘notify the employee of a decision within 3 months (or longer period if agreed with the employee)’.
What is a ‘reasonable manner’? ACAS has produced a code of practice on ‘Handling in a reasonable manner requests to work flexibly’. This can be found on the ACAS website along with ‘The right to request flexible working’.
At this point we can be cynical by concluding that the removal of the formal procedure releases employers from claims against them by way of not following such procedures. This, running in parallel to the options that the companies have for rejecting a request, makes flexible working a weak form of legislation.
Reasons for rejection
The employers’ are provided reasons for rejecting the request by the old legislation, which remain in force:
80G(1)(b) Employer ‘shall only refuse the application because he considers that one or more of the following
>detrimental effect on ability to meet customer demand,
> the burden of additional costs,
> inability to re-organise work among existing staff,
> inability to recruit additional staff,
> detrimental impact on quality,
> detrimental impact on performance,
> insufficiency of work during the periods the employee proposes to work,
> planned structural changes [to your business]
The problems that the worker would encounter here is that everything and anything that relates to the disruption of the business is included. We cannot personally think of anything that can be added. It is then fair to say that any business grounds that the employer has will be valid under section 80G of the Act.
However, there is something that all employers should be mindful of when considering an application for flexible working request. It is true to say that the majority of requests, by and large, come
exclusively from women. This can ultimately lead onto other legal obligations. Employers could ultimately fall foul of the law surrounding sex discrimination either directly or indirectly. We shall avoid getting into very complicated case law surrounding this area but generally speaking if a woman requests flexible working, for example, going part time after returning from maternity leave and the employer says no, then that may give rise to potential indirect sex discrimination. But men must not be ignored either because they may have a case of direct sex discrimination if they favour women over men as each request has to be treated equally.